Logic and the law: when their paths diverge; ten instances in which judicial interpretations in matters of evidence and procedure seemingly run counter to logic.

• Author: Allen, A. Graham
• Position: Florida Rules of Civil Procedure

Sometimes a rule reads so plainly, or a concept seems so clear, that further research is deemed superfluous. Logic leaves little room for more than one interpretation. As Justice Oliver Wendell Holmes long ago observed, however, "[t]he life of the law has not been logic: it has been experience." (1) As a consequence, the obvious interpretation of a rule of procedure, or the practical application of a point of law--the "logic" of it all--often collides squarely with the judicial interpretation developed over years of experience. These are traps for the unwary litigator, though some are so seldom recognized that the trap is rarely sprung.

The purpose of this article is not so much to criticize the manner in which the rules or procedural points have been interpreted by the courts as to direct attention to apparent anomalies and, in some instances, to urge revision of a rule to conform to the interpretation developed by the judiciary.

Pleading and Proof of Conditions Precedent

The plaintiff has included the standard catch-all allegation in the complaint: "plaintiff has complied with all conditions precedent to the defendant's liability under this contract." The defendant knows that a 30-day notice was required before the defendant was obligated to perform, and that this notice had not been given. Defendant also knows that under both the Florida (2) and Federal (3) Rules of Civil Procedure, while conditions precedent may be pled generally, they must be denied "specifically and with particularity." Defendant responds: "defendant specifically denies that the plaintiff has complied with all conditions precedent." Can the defendant be more specific than that?

If the defendant is not more specific than that, the plaintiffs noncompliance with the condition has been waived. As the court explained in Fidelity & Casualty Company of New York v. Tiedtke, 207 So. 2d 40, 42-43 (Fla. 4th DCA 1968), rev'd, on other grounds, 222 So. 2d 206, (4) Fla. R. Civ. P. 1.120(c) relieves a claimant of the task of specifically alleging compliance with each and every condition precedent to the claim, and shifts that burden of pleading to the defendant. The defendant is thus required to specifically identify in the answer those conditions with which the plaintiff had failed to comply. Failure to deny with specificity that the plaintiff has complied with any particular condition precedent waives any noncompliance with the condition. (5)

Rule 1.120(c) does not shift the burden of proof, only the burden of pleading. Once the defendant makes the specific denial, "the burden reverts to the plaintiff to prove the satisfaction of the condition precedent. (6) The burden of proving compliance with conditions precedent remains with the plaintiff, and this is so even though the defendant may have erroneously set forth noncompliance as an affirmative defense. (7) Though this detailed procedure is not readily apparent from a logical reading of the rule itself, it has a very practical basis, and streamlines the litigation process. The federal rule is virtually identical, and the federal courts interpret it in the same manner. (8)

The Motion in Limine: Protection on Appeal?

The plaintiff knows the defendant will attempt to offer evidence at trial that the plaintiff feels is both irrelevant and prejudicial. Plaintiff files a motion in limine, (9) asking the court to preclude the evidence. The court hears the motion prior to trial, denies it, and enters an order ruling specifically that the testimony is proper and admissible. At trial, the moment approaches--the testimony is about to be offered. An order in the record states, in no uncertain terms, that the plaintiff's objection was not well taken and that the testimony is to be allowed. Logic indicates the record is protected. Does plaintiff's counsel still make the objection, with the virtual certainty it will be overruled?

The plaintiff must object. The order denying the motion in limine does not preserve the record. To protect the plaintiff's position, the objection must be made at trial. (10) The theory, presumably, is that the judge might change his or her mind, or, at least, should have the opportunity to do so.

Had the plaintiff's motion been granted, it would have been incumbent upon the defendant to proffer the excluded evidence, in order to preserve the record. "When the trial court excludes evidence [by way of an order in limine], an offer of proof is necessary ... if the claimed evidentiary error is to be preserved for appellate review." (11) Obviously, the proffer is done outside the presence of the jury and, when offered in that manner, does not violate the order in limine. (12) An exception to this requirement exists where "an adequate record of excluded evidence has been made at the hearing on the motion in limine." (13)

Certified Question to Florida Supreme Court

The district court of appeal rules against the appellant, but certifies a question to the Florida Supreme Court as being one of great public interest. There is a logical assumption that there will be an automatic review. Is there anything else the appellant needs to do?

The mere fact that the district court of appeal certifies a question to the Florida Supreme Court does not give that court jurisdiction. The appellant must formally seek review. In Petrik v. New Hampshire Insurance Company, 400 So. 2d 8 (Fla. 1981), the district court of appeal certified a question to the Florida Supreme Court as being of great public interest. The party adversely affected by the district court's ruling did not seek further review, although other parties did petition for conflict certiorari. The Florida Supreme Court held that, regardless of the certification by the district court, "we do not have jurisdiction because a certified question has not been brought to us for review." (14) The court went on to hold that the district court's decision "is final and is the law of the case, ... even though we have subsequently [in another case] ... answered the certified question contrary to the holding of the district court" (emphasis supplied). (15)

In short, the fact that the district court of appeal certifies a question to the Florida Supreme Court is meaningless unless one petitions that court for jurisdiction.

Is a "John Doe" Suit Effective?

The statute of limitations is getting ready to run on a product liability claim, but plaintiff has not as yet identified the manufacturer of the product. Plaintiff files the suit the day before the statute runs, naming "John Doe" as the manufacturer. In the body of the complaint, plaintiff sets forth in detail that, despite diligent efforts, the identity of the manufacturer is at that point unknown, and that the proper defendant will be substituted once identified. A couple of months later plaintiff discovers the identity of the manufacturer and amends the complaint to substitute the manufacturer for the "John Doe" defendant. Is the claim against the manufacturer barred by the statute of limitations?

Logic might well indicate that the answer is no, and that the claim against the manufacturer is protected. Fla. R. Civ P. 1.190(c) provides for the relation back of an amended complaint to the date of the original complaint when the claim asserted in the amended complaint arose out of the same conduct, transaction, or occurrence. (16) In other states, there are statutes or rules of procedure, (17) as well as case law, (18) specifically allowing the filing of a "John Doe" pleading if the true name of the defendant is not known and, once an amended pleading is filed identifying that defendant, providing for relation back of the amendment to the date of the original complaint. There is even a Florida appellate decision that upon a cursory reading would appear to adopt such a principle. (19)

Under the current state of the law in Florida, however, the claim against the manufacturer is barred. In Grantham v. Blount, 683 So. 2d 538 (Fla. 2d DCA 1996), the only Florida decision to date that is squarely on point, the court found specifically that "the filing of a `John Doe' complaint does not commence an action against a real party nor does it toll the running of the statute of limitations." (20) In Grantham, the court noted that Florida has neither a statute nor a procedural rule permitting a relation back to an original "John Doe" complaint. (21)

While the court recognized that it "presumably ... has the power to authorize a plaintiff to commence an action against an unknown defendant by use of a John Doe pleading," (22) it declined to exercise that power for two reasons. First, the court felt that such a ruling would be "comparable to a tolling statute that extends the time to file an action against the actual defendant until a defendant is discovered." (23) The court observed that with the adoption...